IN THE COURT OF APPEALS OF IOWA

No. 19-1881

Filed March 17, 2021

IN THE MATTER OF THE ESTATE OF HELEN L. BURGE, Deceased.

KEITH BURGE,

Appellant/Cross-Appellee,

ALEX BURGE and ELLIS BURGE,

Appellants,

vs.

JOAN BURGE, LINDA FREESE, ERIN FREESE GRIGG, BRIAN FREESE, and 

GUTHRIE BURGE,

Appellees/Cross-Appellees,

and

KEATON BURGE,

Cross-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Linn County, Sean W. McPartland, 

Judge.

The beneficiaries under a will appeal and cross-appeal from the court’s 

order deciding objections to the executor’s final report. AFFIRMED ON APPEAL; 

AFFIRMED ON CROSS-APPEAL.

Guy P. Booth, Cedar Rapids, and Darrel Morf and Chad Brakhahn of 

Simmons Perrine Albright & Ellwood, Cedar Rapids, for appellant Keith Burge.
2

Kevin C. Rigdon and Jase H. Jensen of Howes Law Firm, P.C., Cedar 

Rapids, for appellants Alex Burge and Ellis Burge.

Ann M. Klostermann McCrea and Crystal L. Usher of Nazette, Marner, 

Nathanson & Shea, LLP, Cedar Rapids, for appellees Linda Freese, Brian Freese, 

and Erin Freese Grigg.

Joseph W. Younker and Janice J. Kerkove of Bradley & Riley PC, Cedar 

Rapids, for appellee Joan Burge.

Keaton Burge, Mount Vernon, self-represented cross-appellant.

Guthrie Burge, Mount Vernon, self-represented appellee.

Heard by Vaitheswaran, P.J., and Tabor and Ahlers, JJ.
3

AHLERS, Judge.

Following Helen Burge’s death, her executor sought to probate her will, 

which left her estate to her children and grandchildren. Certain beneficiaries 

objected to the final report, and, after hearing, the probate court entered an order 

resolving those objections. Some of the beneficiaries appeal and cross-appeal 

from that order, arguing the court had no authority or jurisdiction to resolve certain 

disputes and the court erred in distributing particular assets. We reject these 

challenges and affirm.

I. Background Facts and Proceedings.

Helen1 died on January 9, 2015. Because Helen’s husband predeceased 

her, her will left her estate to her descendants: her three children—Keith Burge, 

David Burge, and Linda Freese; Keith’s four children—Alex Burge, Ellis Burge, 

Guthrie Burge, and Keaton Burge; and Linda’s two children—Erin Freese and 

Brian Freese.2 Keith and David, as executors of Helen’s estate, filed a petition for 

probate of Helen’s will. David later died on April 15, 2017. Thereafter, David’s 

surviving wife, Joan, participated in these proceedings as the executor and sole 

beneficiary of David’s estate. 

Helen’s will first distributed $30,000.00 to David “if [David] is surviving on 

the death of the survivor” of Helen and her husband. The will then directed 

distribution of the remaining residue to Helen’s descendants, with half of the 

 

1 Because Helen and most beneficiaries share the last name Burge, we will refer 

to these persons by first and last name on first reference and by first name only on 

subsequent references.

2 As used throughout this opinion, “the children” refers to Keith, David, and Linda; 

“the Farming Grandchildren” refers to Alex, Ellis, Guthrie, and Keaton; and “the 

Freese beneficiaries” refers to Linda, Erin, and Brian.
4

residue left to the three children in equal shares, and the other half of the residue 

left to the six grandchildren in equal shares, with some additional provisions. 

Relevant to these proceedings, Helen’s will contained two provisions to 

accomplish her stated wish of ensuring her farmland would continue to be owned 

“by those members of my family who are engaged in farming.” First, the will 

granted the Farming Grandchildren an option to purchase the entirety of Helen’s 

farmland. If the Farming Grandchildren exercised this option, the will directed the 

Farming Grandchildren to pay a penalty if they sold the farmland within fifteen 

years. Any such penalty would be “distributed in equal shares to [the] children per 

stirpes.”3 This option expired three years after Helen’s death. Second, Keith could, 

“in lieu of his receiving his share of [the] estate in the same fashion as [the two] 

other children, . . . elect to take his share in the form of farmland, provided he and 

[the] Farming Grandchildren can agree upon an appropriate farm division which 

would facilitate such transfer.”

The Farming Grandchildren provided timely written notice of their intent to 

exercise their option to purchase the farmland. Keith provided timely written notice 

of his intent to receive farmland as his distributive share. On February 7, 2018,

Keith, acting as sole executor of Helen’s estate after David’s death, filed a final 

report. This filing included a copy of a real estate installment contract (the first 

proposed contract) signed4 January 8, 2018, which sought to effectuate the 

 

3 The penalty would be the amount by which the sale price exceeded the Farming 

Grandchildren’s purchase price. In other words, any profit on the sale of the 

farmland within the fifteen-year period after the Farming Grandchildren’s purchase 

would go to the children, not to the Farming Grandchildren or anyone else.

4 The signatories to the contract are Keith as executor and the four Farming 

Grandchildren.
5

Farming Grandchildren’s purchase5 of Helen’s farmland and the transfer of part of 

that farmland to Keith. 

Joan filed an objection—and the Freese beneficiaries filed a separate 

objection—asserting numerous issues with the final report and with Keith’s actions 

as executor. The probate court set a hearing on the objections, but on Keith’s 

motion the court continued the hearing so the parties could engage in settlement 

discussions. A little over one month later, Joan filed a motion—which the Freese 

beneficiaries later joined—seeking to enforce a settlement agreement the parties 

purportedly reached. Alex and Ellis resisted Joan’s motion, and the settlementenforcement issue proceeded to a hearing. Following the hearing, the court issued 

an order finding, although the beneficiaries who participated in the settlement 

negotiations reached a settlement, the settlement was not enforceable because 

Guthrie and Keaton did not participate in negotiations or agree to the terms.

On December 12, 2018, Keith filed an amended final report, which included 

a proposed amended contract (the second proposed contract) to effectuate the 

transfer of Helen’s farmland to Keith and the Farming Grandchildren. All 

outstanding issues proceeded to a hearing on January 9, 2019. After a period 

allowed for post-hearing briefing, the probate court entered the order at issue here. 

The court’s order addressed all remaining issues, including memorializing Keith’s 

interest and the Farming Grandchildren’s interest in the farmland, declaring the 

required terms of any contract for the sale of the farmland to effectuate the options 

 

5 The Farming Grandchildren formed a limited liability company to own and operate 

the farmland, as permitted under the will. For simplicity, we will refer to the Farming 

Grandchildren as the purchaser of the farmland.
6

exercised by Keith and the Farming Grandchildren, and denying a request by Alex 

and Ellis for attorney fees. The court’s order included direction that, if Keith 

continued with the exercise of his option to take farmland, it would be in lieu of his 

receiving his share of the estate such that he would not be entitled to a share of 

any penalty associated with the Farming Grandchildren’s future sale of the 

farmland.

Alex and Ellis appeal, arguing the probate court improperly modified the first 

proposed contract, interfered with their inheritance of the residue, and should have 

awarded attorney fees. Keith also appeals, arguing the court should not have 

removed him as a residual beneficiary. Keaton filed a cross-appeal, arguing the 

court should have excluded Joan as a beneficiary and from participating in the 

proceeding.6 Joan filed a brief as appellee/cross-appellee, which the Freese 

beneficiaries joined.

II. Standard of Review.

We review objections to an executor’s final report de novo. In re Estate of 

Johnson, 387 N.W.2d 329, 332 (Iowa 1986); see also Iowa Code § 633.33 (2015) 

(stating all matters in probate, other than actions to set aside or contest wills, are 

tried in equity); Iowa R. App. P. 6.907 (“Review in equity cases shall be de novo.”). 

“Although we give deference to the district court’s findings of fact, we are not bound 

by them.” Johnson, 387 N.W.2d at 332.

 

6 Keaton’s self-represented cross-appeal raises numerous other issues that are 

either duplicative of the issues raised on appeal or not properly before us. To the 

extent he raises issues the other beneficiaries raised on appeal, we consider his 

arguments with the appropriate issue on appeal. We do not consider arguments 

not properly raised.
7

In Iowa, the cardinal rule of will construction is that “the intent 

of the testator is the polestar and must prevail.” In determining the 

testator’s intent, we consider “(a) all of the language contained within 

the four corners of the will, (b) the scheme of distribution, (c) the 

surrounding circumstances at the time of the will's execution[,] and 

(d) the existing facts.” The court considers the instrument as a whole 

and tries to give each part meaning and effect.

Roll v. Newhall, 888 N.W.2d 422, 426 (Iowa 2016) (alteration in original) (quoting

In re Estate of Rogers, 473 N.W.2d 36, 39 (Iowa 1991)). 

III. Terms of the Real Estate Contract.

Alex and Ellis—two of the Farming Grandchildren—attack the probate

court’s order requiring the contract to sell the farmland to include terms different 

from those in the first proposed contract on multiple grounds. Before addressing 

these contentions, it is important to recognize what the court’s order did and did 

not do. The court ordered any contract for the sale of the farmland to include two 

provisions that differed from the terms of the second proposed contract. The 

provisions (1) barred Keith from sharing in profits from sale of the farmland during 

the contract term, as discussed in section VI below, and (2) barred the contract 

sellers from participating in the Farming Grandchildren’s operation and 

maintenance of the farm during the contract term. Otherwise, the court approved

the second proposed contract in full. Alex and Ellis appear to seek reinstatement 

of the terms of the first proposed contract filed with the February 7, 2018 final 

report. However, any differences between the first proposed contract and the 

second proposed contract were the result of settlement negotiations between the 

beneficiaries, not the result of a court order. Thus, we have nothing to review to 

the extent Alex and Ellis object to differences between the first proposed contract 

and the second proposed contract. We can properly review Alex and Ellis’s 
8

objection to the contract terms imposed by the district court based on the court’s 

interpretation of the will.

A. Authority to Order Terms of the Contract.

Alex and Ellis argue Keith, as executor, “has the sole right, without court 

oversight, to sell real estate because the [w]ill provides an unrestricted power of 

sale.” They note the will authorizes the executor “[t]o sell, convey, auction, lease 

or mortgage any property . . . upon such terms and conditions as shall seem best 

to” the executor.

The will, when read as a whole, specifically does not give the executor 

unchecked power to dispose of the farmland. In granting the Farming 

Grandchildren an option to purchase the farmland, Helen established numerous 

terms and conditions on the sale in her will, including price per acre and limits on 

the purchasers’ ability to resell the farmland. Helen directed the executor to 

“establish reasonable terms and conditions” to implement the sale, and she 

explicitly authorized the courts to resolve “any dispute as to the reasonableness of 

any such terms or conditions.” Nothing in the will limits who can dispute the terms 

or conditions of the proposed sale contract. As parties entitled to receive sale 

proceeds from the sale and entitled to receive funds in the event the farmland was 

sold for a profit within the fifteen-year period following the Farming Grandchildren’s 

purchase, Joan and the Freese beneficiaries certainly had an interest in the terms 

of the contract and the right to dispute terms they viewed as unreasonable. Thus, 

the court ordering the terms and conditions that must be included in any contract 

of sale to resolve any objections to “reasonableness” is authorized by the will.
9

B. Jurisdiction Over the Contract.

Alex and Ellis argue the first proposed contract was enforceable. They 

assert the probate court’s involvement in setting the terms of the contract 

constituted a modification of the first proposed contract and the court lacked 

jurisdiction to do so. In making their argument, they appear to conflate jurisdiction 

with authority. See Alliant Energy-Interstate Power & Light Co. v. Duckett, 732 

N.W.2d 869, 874–75 (Iowa 2007) (“Subject matter jurisdiction refers to the 

authority of a court to hear and determine cases of the general class to which the

proceedings in question belong, not merely the particular case then occupying the 

court's attention. A court may have subject matter jurisdiction but for one reason 

or another may not be able to entertain a particular case. In such a situation we 

say the court lacks authority to hear that particular case.” (citations omitted)).

To the extent Alex and Ellis question the court’s jurisdiction, the Iowa Code 

explicitly authorizes the court to hear probate matters and construction of wills. 

See Iowa Code § 633.10(1)–(2). The probate court also “has plenary jurisdiction 

to determine matters essential to probate business before it.” In re Guardianship 

of Matejski, 419 N.W.2d 576, 578 (Iowa 1988).

To the extent Alex and Ellis question the court’s authority, they claim the 

court’s actions should be limited to resolving disputes in the executor’s final report, 

not to the terms of the first proposed contract. However, the objections to the final 

report specifically extended to any terms of a contract to effectuate the options 

exercised by the Farming Grandchildren and Keith. Given the court’s broad 

jurisdiction to hear probate matters and the nature of the objections, the district 

court had the authority to establish the terms of any contract effectuating the 
10

options. See In re Estate of Ballstadt, No. 03-2117, 2004 WL 1899949, at *2 (Iowa 

Ct. App. Aug. 26, 2004) (“Certainly, a district court sitting in probate has jurisdiction 

to approve sales of real estate, so one must conclude the court had the power to 

hear and determine a case of this general class.”).

C. Modification of the First Proposed Contract.

Finally, Alex and Ellis assert there is no authority and there are no facts to 

justify what they claim was a modification of the first proposed contract. Their 

central argument here appears to be that the first proposed contract was a binding 

contract that the probate court was bound to accept without modification. In 

support of this contention, they cite Estate of Randeris v. Randeris, arguing it 

stands for the proposition that the probate court’s authority in ruling on objections 

to a final report are limited to resolving questions surrounding the executor’s 

accounting and “does not invoke the court’s general jurisdiction to actually 

adjudicate title.” 523 N.W.2d 600, 604 (Iowa Ct. App. 1994).

We find Randeris inapplicable. Randeris involved a challenge to the 

executor’s failure to attempt to set aside transfers of land completed prior to the 

testator’s death. Id. at 603. In this context, the court noted the probate court’s 

authority in ruling on an objection to a final report did not extend to actually 

adjudicating title to the previously conveyed land. Id. at 604. As a result, the court 

concluded the probate court improperly set aside the predeath transfers of 

property. Id.

Here, unlike in Randeris, we are not dealing with predeath transfers or 

actions by Helen prior to her death. Instead, we are dealing with the actions of the 

executor in fulfilling his obligations under the terms of Helen’s will, which included 
11

effectuating the sale of farmland to the Farming Grandchildren pursuant to the 

exercised option, but only under the terms and conditions set in the will. As 

explained above, the executor’s power to sell the farmland was subject to the terms 

and conditions in the will and court review for reasonableness. The probate court 

was within its authority to rule on objections to the manner in which the executor 

was effectuating the sale of the farmland by making sure any contract correctly 

included required terms. Furthermore, the attorney for Alex and Ellis conceded at 

the January 9, 2019 hearing that the first proposed contract could not simply be 

ratified because it did not provide for Keith’s share of the farmland. For these 

reasons, we agree the first proposed contract was not binding or enforceable and 

the probate court’s establishment of required terms of the contract for sale was not 

a modification of an existing contract.

IV. Lien on the Farmland.

The second proposed contract contains the following provision: “Sellers and 

it [sic] successors and assigns shall have a lien against the Farming 

Grandchildren’s Land for purposes of enforcing all rights under this contract, 

including, but not limited to, rights of forfeiture or foreclosure.” The probate court’s 

order approved of a lien and directed the executor “to recognize, memorialize and 

record a lien or liens on . . . the farmland until the contract is paid in full.” Alex and 

Ellis argue the court should not have ordered the lien, characterizing the lien as 

“divest[ing] the Farming Grandchildren of their interests in the residuary.” 

However, the lien does not affect each Farming Grandchild’s one-twelfth interest 

in the residuary. The lien only affects the Farming Grandchildren’s option to 

purchase the farmland, which the will subjects to “reasonable terms and 
12

conditions.” The Farming Grandchildren are free to decline the option if they 

disagree with the terms and conditions of the sale. Because the lien will protect 

the sellers in the event of forfeiture or foreclosure of the farmland, we agree the 

lien is a reasonable condition of the contract as ordered by the probate court.

V. Attorney Fees.

Alex and Ellis appeal the district court’s denial of their request for attorney 

fees.7 “Generally, a party has no claim for attorney fees as damages in the 

absence of a statutory or written contractual provision allowing such an award.” 

Williams v. Van Sickel, 659 N.W.2d 572, 579 (Iowa 2003). Alex and Ellis do not 

seek an award of attorney fees under statute or contract. Instead, they seek an 

award of attorney fees under the common law. We review a common law request 

for attorney fees de novo. Id.

“To obtain common law attorney fees, a party must prove ‘that the culpability 

of the [opposing party’s] conduct exceeds the willful and wanton disregard for the 

rights of another’ standard required to prove punitive damages.” Id. (quoting 

Hockenberg Equip. Co. v. Hockenberg’s Equip. & Supply Co., 510 N.W.2d 153, 

159 (Iowa 1993)). “The opposing party’s conduct ‘must rise to the level of 

oppression or connivance to harass or injure another.’” Id. (quoting Hockenberg, 

510 N.W.2d at 159–60). In requesting attorney fees, Alex and Ellis repeat their 

 

7

In addition to their common law claim for attorney fees, Alex and Ellis requested 

attorney fees under Iowa Rule of Civil Procedure 1.413. This “rule is intended to 

discourage parties and counsel from filing frivolous suits and otherwise deter 

misuse of pleadings, motions, or other papers.” Barnhill v. Iowa Dist. Ct., 765 

N.W.2d 267, 273 (Iowa 2009). For the same reasons expressed in this section, 

we find the probate court did not abuse its discretion in denying the request for 

sanctions under rule 1.413. See id. at 272 (reviewing a request for sanctions for 

abuse of discretion).
13

arguments on the issues from above and other issues before the probate court, 

and they assert the objectors acted contrary to authority. The court found the 

parties “have engaged in some conduct, and taken some positions, which may 

easily be characterized as beyond zealous advocacy for positions based upon 

facts and principles at law.” However, the court concluded the objectors’ actions 

did “not rise to the level of culpability exceeding the willful and wanton disregard of 

other parties.” As noted above, we reject all of Alex and Ellis’s arguments on 

appeal. On our de novo review of the record, we agree with the probate court that 

the objectors’ conduct does not rise to the level justifying a common law award of 

attorney fees.

VI. Keith’s Interest.

To effectuate the will’s penalty for early sale of the farmland, if such a future 

sale were to occur, the second proposed contract required the Farming 

Grandchildren to pay an amount in equal shares to Keith, Linda, and Joan (as

David’s successor) for each acre sold. Because Keith elected to take his share of 

the estate as farmland, the probate court ordered Keith removed from this 

provision so any penalty would be paid in equal shares to Linda and Joan only. 

Keith argues this modification is contrary to the intent of the will.

Keith correctly notes the will requires the penalty “be distributed in equal 

shares to [the] children per stirpes.” However, the will also mandates that Keith’s 

election to receive farmland is “in lieu of his receiving his share of [the] estate in 

the same fashion as [the] other children.” Thus, by electing to receive his share of 

the estate in farmland, Keith forfeited his right to further inherit under the will “in 

the same fashion as [the] other children.” This includes forfeiting his right to 
14

receive any penalty for early sale of the farmland. We agree with the probate court 

that excluding Keith from any penalty for early sale of the farmland is a correct 

interpretation of the will.

VII. David’s Interest.

Helen died on January 9, 2015. Thereafter, David died on April 15, 2017. 

Keaton argues David’s death bars Joan and David’s estate from inheriting under 

the will. He bases this argument on the following provision in the will:

The remainder of the residue shall be distributed as follows:

. . .

One-half thereof to be distributed in equal shares to my three 

children, Keith Burge, David Burge and Linda Freese. If any of my 

children shall not be then surviving such child’s share shall be 

distributed to such child’s descendants per stirpes, or if none are then 

surviving, then added to shares of any other children as aforesaid. 

Such bequests shall be subject to the option provisions of Division B 

hereof.

(Emphasis added.) Keaton argues “then surviving” refers to the date the Farming 

Grandchildren exercised their option to purchase the farmland or the date the 

option expired, whichever occurred first. Keaton asserts the will shows a clear 

intent for Helen’s estate to remain with her children and grandchildren. However, 

there is nothing in the terms of the will that supports Keaton’s contention. In fact, 

the will shows Helen intended to identify the beneficiaries at the time of her death. 

The bequest of $30,000.00 to David specifically occurs “if [David] is surviving on 

the death of the survivor” of Helen and her spouse (who predeceased Helen). 

Helen’s will does not contain any alternate bequests if a beneficiary dies after the 

testator. See, e.g., Marlin M. Volz, Jr., Iowa Practice Series: Methods of Practice 

§ 20:18 (Aug. 2020 update) (providing an example of a bequest if the beneficiary 
15

“dies within 60 days after” the testator). Due to the fact David survived Helen, we 

agree David is a full beneficiary under Helen’s will, and Joan, as the sole 

beneficiary of David’s estate, is entitled to receive David’s share of the inheritance.

VIII. Conclusion.

The probate court properly directed the required terms of the contract for 

the Farming Grandchildren to purchase the farmland, including placing a lien on 

the farmland until final payment. Additionally, Alex and Ellis are not entitled to 

attorney fees, Keith is properly excluded from receiving any penalty payment from 

early sale of the farmland, and Joan, as sole beneficiary of David’s estate, is 

entitled to receive David’s inheritance under the will. 

AFFIRMED ON APPEAL; AFFIRMED ON CROSS-APPEAL.